135 N.Y.S. 773 | N.Y. App. Div. | 1912
This is an action under section 2653a of the Code of Civil Procedure to revoke the probate of the will of Alexander Miller, who died on the 6th day of May, 1909. A petition for the probate of the will was duly presented toi the Surrogate’s Court of the county of New York on. the 13th day of May, 1909. Objections to its probate were filed by the plaintiff, who is the widow of the decedent, but they were subsequently with
Upon the trial, after the introduction of expert testimony tending to show that the signature to the will was not in the handwriting of the decedent, that contention was abandoned, and the only questions submitted to the jury were whether the decedent was competent to make a will, and whether he was unduly influenced. The jury answered both questions in favor of the plaintiff.
The learned counsel for the respondent contends that in view of these special findings on the separate issues, the judgment must be permitted to stand if there was sufficient evidence to sustain it upon either theory, which doubtless ordinarily is the rule; but we are of opinion that the verdict is clearly against the preponderance of the evidence upon both issues.
It is claimed at the outset, that the will is unnatural, but even that is not satisfactorily shown. The age of the decedent is not definitely shown. The evidence tends to show that he was between fifty-two and fifty-nine years of age at the time of his death. He married the plaintiff on the 23d day of November, 1898, and had never been married before. Prior to his marriage his three maiden sisters and his brother Gordon lived with him. The decedent was the head of the family and furnished the principal support. His business had always been that of a boilermaker, and it had been conducted by a copartnership, of which he was a member, in the name of Brown & Miller until the month of September, 1902, when he bought out Brown’s interest for $60,000 and took his brother Gordon into partnership with him giving him an undivided one-half interest, and thereafter until the death of the decedent the business was. conducted in the name of Alex. Miller & Bro. By the will he gave the plaintiff $12,600 in lieu of dower, and he left
The firm of Alexander & Ash were the attorneys for the decedent’s father, and represented the defendants in settling his estate, and were the attorneys for the decedent’s firms and did considerable business for them. The decedent usually transacted the business of his firms with the attorneys, and they came to know him intimately. The uncontroverted evidence is that the will was executed in the office of Alexander & Ash on the 28th day of July, 1904, and that the decedent then and there produced a check book and filled out the stub and wrote a check for $25, and delivered it to Mr. Ash, that being the charge for drawing the will. According to the testimony of Mr. Ash, who appears to be wholly disinterested, the decedent called at the office about a week prior to this time to have his will drawn and stated how he wished to leave his property, and that at that time, and when the will was executed, the decedent appeared to be in full possession of his faculties and in good health and vigor, physically and mentally. Mr. Ash was one of the witnesses to the will, and the other was his managing clerk, who died before the trial. Mr. Alexander, who transacted admiralty business for the decedent and saw him quite frequently before and- after the date of the will, likewise gave evidence tending to sustain his competency. About the year 1902 the decedent developed symptoms of Bright’s disease and arterio sclerosis and these diseases continued, became chronic, and they alone or together with alcoholism were the causes of his death. He was not, however, incapacitated from attending to business until about two months before he died, and down to that time he attended to the routine business of the firm practically to the same extent as before. He was quite familiar with the business of the firm
The claim with respect to undue influence is that it was exercised upon the decedent by his brother Gordon and his three sisters. There is no express evidence that any influence was exercised, or attempted to be exercised, upon the decedent with respect to the execution of the will. The contention in that regard is based wholly on circumstantial evidence. The substance of this evidence. is that already stated and other testimony tending to show that his sisters were jealous of the plaintiff, and were disposed to prevent her getting his property, and that he visited them frequently, which afforded them an opportunity to influence him; that he was subject to be mentally dominated, controlled and directed by his brother Gordon; and that Gordon accompanied the decedent when the Will was made, which is based on the testimony of the plaintiff with respect to an interview with Mr. Ash, concerning which she testified that Ash admitted to her that Gordon accompanied the decedent to his office on -the occasion when the will was drawn, and that the decedent did not intend, until it was suggested by the lawyer, to leave the plaintiff anything; but
On the issue with respect to undue influence the evidence was wholly insufficient to take the case to the jury, and while it cannot be said that there was no evidence tending to show mental incapacity to make the will, the evidence to that effect was slight indeed, and entitled to very little weight, particularly the expression of opinion by a medical expert with respect to the decedent’s mental condition at the time the will was drawn, based for the most part upon his subsequent acts and conduct, and the verdict in that respect is clearly against the weight and preponderance of the evidence.
It follows that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.